Gering v. Poppell

Decision Date21 September 2020
Docket NumberCase No. 19-cv-22115-BLOOM/Reid
PartiesROBERT GERING, Petitioner, v. CHAD POPPELL, Secretary, Florida Department of Children and Families, Respondent.
CourtU.S. District Court — Southern District of Florida

THIS CAUSE is before the Court upon Petitioner Robert Gering's Petition for Writ of Habeas Corpus pursuant to 22 U.S.C. § 2254, ECF No. [1] ("Petition"). Respondent filed a response in opposition, ECF No. [16] ("Response"), to which Petitioner filed a traverse in reply, ECF No. [28] ("Reply"). The Court has carefully considered the Petition, the Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Petition is denied.


Petitioner challenges the constitutionality of his civil commitment under Florida's Jimmy Ryce Act, entered following a jury trial in Miami-Dade County Circuit Court, Petition No. 2015-009809-CA-01. Construing his arguments liberally as afforded pro se litigants, pursuant to Haines v. Kerner, 404 U.S. 519, 520 (1972), Petitioner raises a single ground for relief: his liberty interest under the Fourteenth Amendment and his constitutional right to a jury trial in a civil commitment case were violated when the trial court granted the State's motion for directed verdict without submitting the case to the jury. See ECF No. [1] at 5.

A. The Jimmy Ryce Act

The Jimmy Ryce Act (the "Act") went into effect on January 1, 1999 and is formally titled "Involuntary Civil Commitment of Sexually Violent Predators." See Fla. Stat. Ch. 394, Part V. Under the Act, a person who meets the statutory definition of a "sexually violent predator" ("SVP") may be involuntarily committed for long-term treatment and care.

The Act defines an SVP as any person who "[h]as been convicted of a sexually violent offense" and who "[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." Fla. Stat. § 394.912(10). The legislature intended to "create a civil commitment procedure for the long-term care and treatment of sexually violent predators," because it found that existing provisions for the commitment of the mentally ill were insufficient to address the particular needs and dangers presented by SVPs. Fla. Stat. § 394.910.

Civil commitment proceedings are normally commenced when the State Attorney files a petition for commitment, which then triggers a state court to determine whether there is probable cause to determine that the individual is an SVP. Fla. Stat. § 394.915(1). If the court finds probable cause exists, the individual may be held in custody pending a final determination of whether the individual is subject to civil commitment. Fla. Stat. § 394.915(5).

Before the state civilly commits an individual, that person has the statutory right to a jury trial. Fla. Stat. § 394.916(1) and (5). The individual also has the right to the assistance of counsel and to present experts, and if the person is indigent, he or she may receive these services at no cost. See Fla. Stat. §§ 394.916(3) and (4). At trial, if it is determined "by clear and convincing evidence,"either by the court or a unanimous jury, that the individual is an SVP, then he or she is "committed to the custody of the Department of Children and Family Services for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." Fla. Stat. §§ 394.917(1) and (2).

Thereafter, the Act mandates review of the detainee's mental condition at least once a year, "or more frequently at the court's discretion," to determine whether the detainee continues to qualify as an SVP. See Fla. Stat. § 394.918(1). After each annual mental health status review, a court must hold a "limited hearing" to determine whether there is probable cause to believe the detainee is safe to be at large. See Fla. Stat. § 394.918(3). If probable cause is found, then the case is set for a non-jury trial, at which time the State continues to bear the burden of proving by clear and convincing evidence that the detainee still qualifies as an SVP. See Fla. Stat. §§ 394.918(3) and (4). However, if the State fails to meet its burden, the detainee is released from custody. Id.

B. Procedural history1
1. Pre-trial proceedings

In 1986, in New York Case Number 86-A6957, Petitioner was charged with burglary and rape of an elderly woman. ECF No. [17-1] at A. 1. He was convicted and sentenced to a term of 5 to 15 years in state prison. Id. at A. 2. Petitioner was released on supervision but absconded to Florida. Id. at A. 3.

In Miami-Dade, Florida Case No. F97-23950, Petitioner was charged by amended information with lewd and lascivious battery on an elderly person, battery on an elderly person, and kidnapping. Id. at A. 6. After a jury found Petitioner guilty, he was sentenced to a total of 25years' imprisonment. Id. at A. 7, 8. The sentence was ordered to run concurrent to his existing sentence in the New York case. Id. at A. 9. Petitioner then sought direct appellate review, and Florida's Third District Court of Appeal ("Third DCA") per curiam affirmed Petitioner's judgment of conviction. Id. at A. 11; see also Gering v. State, 746 So.2d 580 (Fla. 3d DCA 1999). The Florida Supreme Court denied review. ECF No. [17-2] at A. 13.

In 2015, in Miami-Dade Civil Case No. 2015-09809-CA-01, prior to the expiration of Petitioner's Florida sentence, the State Attorney filed a petition to have the Petitioner involuntarily civilly committed as an SVP under the Act "for control, care and treatment until such time as the [Petitioner's] mental abnormality or personality disorder has so changed that it is safe for [Petitioner] to be at large." ECF No. [17-2] at A. 26.

Petitioner, through counsel, moved to dismiss the petition, arguing that involuntary civil commitment was facially unconstitutional for restricting his fundamental liberty right under the Fourteenth Amendment. ECF No. [17-4] at A. 36. The trial court denied the motion. After Petitioner's bench trial resulted in a mistrial, id. at A. 38, and the trial judge entered an order of recusal, id. at A. 41, Petitioner demanded a jury trial, id. at A. 43, which trial was held in February 2016.

2. Evidence presented at Petitioner's jury trial

The State presented two witnesses, Drs. Jeffrey Musgrove and Sheila Rapa, at the jury trial. Dr. Musgrove testified that he examined Petitioner prior to trial, found that he met the criteria necessary for civil commitment, and that he would likely commit another sexually violent offense if not confined for treatment. T. 5 at 268, 308-09, 381-90.2 Dr. Musgrove diagnosed Petitioner assuffering from sexual sadism disorder, paraphilia, an antisocial personality disorder, a depression condition, and stimulant use disorder. Id. at 308, 383-85.

Through Dr. Musgrove, the State introduced facts surrounding Petitioner's criminal convictions. Petitioner was 21 years old when, in the New York case, he went to the 83-year-old victim's home and awoke her to tell her that he left a wrench downstairs with the boiler. T. 7 at 552; T. 5 at 320-21. She opened the door, Petitioner pushed her to the floor, pulled her hair, and said he wanted to have sex. T. 5 at 321. Her screams drew her 70-year old sister, whom Petitioner pulled into a bedroom and raped. Id. Petitioner stopped, went to the refrigerator, and got a drink of alcohol, which Dr. Musgrove found "clinically disturbing." Id. at 324, 330. Petitioner thereafter told them not to call the police. Id. at 321. Dr. Musgrove found that Petitioner showed predatory violent planning. Id. at 327. Dr. Musgrove believed this showed Petitioner had an antisocial structure. Id. at 330. After Petitioner completed his New York prison sentence, he was placed on parole, ordered to go to treatment, sex offender treatment, and drug treatment. Id. at 332. Petitioner received advanced sex offender treatment in the community. Id. at 334. Petitioner violated New York parole or probation four times. Id. at 334, 423. Petitioner returned to New York but to avoid returning to jail he came to Miami. Id. at 337. Petitioner did not tell Dr. Musgrove about his violations or absconding from supervision. Id. at 334-35. Minimizing his continued violations of rules indicated an antisocial personality disorder. Id. at 335, 337.

In Miami Beach, Petitioner assumed a different name and became a handyman at an elderly apartment building. Id. at 337-38. At this time, Petitioner was 31 or 32. Id. at 364. The 89-year-old female victim, who used a walker, responded to Petitioner's flyer advertising his handymanservices. Id. at 340. Petitioner went to the victim's home at night to fix her blinds. Id. Petitioner picked her up from her chair and dragged her into the bathroom. Id. He undressed her, tied her hands behind her back, and gagged her. Id. at 340-42. The victim went limp and played dead. Id. at 341. She suffered heavy bruising on her face and mouth. Id. at 346. Petitioner told the victim that he was going to have sex with her, but instead got high and left. Id. at 340. Petitioner returned to New York. Id. at 359. Petitioner changed his name on his birth certificate, which suggested an antisocial attempt to elude discovery. Id. at 360-61.

Dr. Musgrove found it significant that: Petitioner used humiliating force with an elderly victim who could not fight back, id. at 343, 437; he initiated the contact with the victim late at night, id. at 354; and the act was sexual. Id. at 358. Dr. Musgrove rejected the suggestion that Petitioner left out of remorse. Id. at 438.

Dr. Musgrove testified that Petitioner's sexual sadism disorder was "powerful" in that it persisted ten years after the first victim, and after treatment and parole, leading to Peti...

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